FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC …€¦ · MELCHOR B. ADVIENTO,...

*** FOR PUBLICATION IN WEST’S HAWAI'I REPORTS AND PACIFIC REPORTER ***

Electronically Filed Supreme Court SCWC-30171 10-FEB-2014 10:07 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

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STATE OF HAWAI'I,Respondent/Plaintiff-Appellee,

vs.

MELCHOR B. ADVIENTO,Petitioner/Defendant-Appellant.

SCWC-30171

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. 30171; CR. NO. 07-1-2068)

FEBRUARY 10, 2014

DISSENTING OPINION BY NAKAYAMA, J.WITH WHOM RECKTENWALD, C.J., JOINS

I respectfully dissent from the majority’s holding that

the trial court plainly erred in failing to instruct the jury on

the extreme mental and emotional disturbance (EMED) defense

because there is no evidence to support the EMED instruction and,

regardless, Mr. Adviento waived this instruction.


I. EMED is an affirmative mitigating defense

EMED is a mitigating defense which can reduce a charge

of murder in the first or second degree to a charge of

manslaughter. Hawai'i Revised Statutes (HRS) § 707-702(2) (Supp.

2008). Manslaughter committed under extreme mental or emotional

disturbance is “the intentional [or knowing] killing of another

‘while under the influence of a reasonably induced emotional

disturbance causing a temporary loss of normal self-control.’”

State v. Aganon, 97 Hawai'i 299, 304, 36 P.3d 1269, 1274 (2001)

(alterations in original) (quoting State v. Sawyer, 88 Hawai'i

325, 333, 966 P.2d 637, 645 (1998)). “But for the presence of

these extenuating circumstances the intentional or knowing

killing of another human being would be murder . . . .” State v.

Holbron, 80 Hawai'i 27, 42, 904 P.2d 912, 927 (1995).

To warrant an instruction as to the EMED defense, there

must be evidence of the defendant’s extreme mental or emotional

disturbance as well as a “reasonable explanation” for that

disturbance. HRS § 707-702(2). “The reasonableness of the

explanation shall be determined from the viewpoint of a

reasonable person in the circumstances as the defendant believed

them to be.” HRS § 707-702(2). We have explained extreme

emotional disturbance as:

“the emotional state of an individual who: (a) has no mentaldisease or defect that rises to the level established bySection 30.05 of the Penal Law; and (b) is exposed to an

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extremely unusual and overwhelming stress; and (c) has anextreme emotional reaction to it, as a result of which thereis a loss of self-control and reason is overborne by intensefeelings, such as passion, anger, distress, grief, excessiveagitation or other similar emotions.”

State v. Perez, 90 Hawai'i 65, 73, 976 P.2d 379, 387 (1999)

(emphasis omitted) (quoting State v. Dumlao, 6 Haw. App. 173,

181–82, 715 P.2d 822, 829 (1986)). We reasoned that “‘a killer’s

self-control, or lack of it, at the time of the killing is a

significant, even determining, factor in deciding whether the

killer was under the influence of an extreme emotional

disturbance such that his conduct would fall under HRS § 707

702(2).’” Sawyer, 88 Hawai'i at 333, 966 P.2d at 645 (quoting

State v. Matias, 74 Haw. 197, 204, 840 P.2d 374, 378 (1992)).

EMED manslaughter is an affirmative defense. HRS §

707-702(2). Therefore, the defendant bears the burden of proving

by a preponderance of the evidence that he or she was acting

under the influence of reasonably induced extreme mental or

emotional disturbance at the time of the offense. See HRS § 701

115(2)(b) (1993) (“If the defense is an affirmative defense, the

defendant is entitled to an acquittal if the trier of fact finds

that the evidence, when considered in light of any contrary

prosecution evidence, proves by a preponderance of the evidence

the specified fact or facts which negative penal liability.”).

If the jury unanimously determines that the defendant has

established the EMED defense by a preponderance of the evidence,

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the jury must acquit the defendant of murder and convict the

defendant of the lesser offense of manslaughter.

HRS § 701-115(1) defines a defense as a “‘fact or set

of facts which negatives penal liability.’” The majority implies

that because proof of a mitigating defense results in a

conviction for a lesser offense, rather than a complete

acquittal, a mitigating defense is not a “true defense.” See

Majority at 50-52. The majority’s analysis ignores that, when

proved, a mitigating defense “negatives penal liability” for the

charged offense and results in an acquittal for that offense.

That proof of the mitigating defense also results in conviction

for a lesser offense does not mean that it is not a defense.

Mitigating defenses are “defenses” pursuant to HRS § 701-115(1).

II. There is no evidence to support the EMED instruction

The majority states that “it is the trial court’s

obligation to provide an EMED instruction when ‘the record

reflects any evidence . . . that the defendant acted under a loss

of self-control resulting from [EMED].’” Majority at 30-31

(emphasis in original) (quoting Aganon, 97 Hawai'i at 304, 36

P.3d at 1274). Even under this lenient standard, there is no

evidence in the record to support the giving of an EMED

instruction. Where the record contains no evidence to support an

EMED defense, the defendant is not entitled to such an

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instruction. Sawyer, 88 Hawai'i at 331, 966 P.2d at 643.

The majority states that the evidence adduced at trial

clearly raises the issue of whether Mr. Adviento acted under the

influence of EMED. Majority at 63. The majority first

emphasizes evidence of Mr. Adviento’s anger preceding the fatal

stabbing. Majority at 65-66. Citing the allegations regarding

Mrs. Adviento’s possible romantic relationship with her co-worker

Merced, the majority surmises that Mr. Adviento “may have been

under significant strain and stress . . . due to the problems he

and [Mrs. Adviento] were experiencing.” Majority at 65. The

majority also notes Mr. Adviento’s statements that he felt

“frustrated” when he heard Mrs. Adviento speaking on the phone

and that he was “mad” during his subsequent argument with her.

Majority at 66. The majority emphasizes that this lengthy

argument and Mr. Adviento’s anger were corroborated by Officer

Sooto’s testimony that Villaver told him the argument went on for

several hours and by Merced’s statement that Mr. Adviento was

“screaming mad.” Majority at 66.

However, the evidence of the Advientos’ purported

marital difficulties does not rise to the level of “an extremely

unusual and overwhelming stress” that would reasonably explain a

loss of self-control. Perez, 90 Hawai'i at 73, 976 P.2d at 387

(emphasis added). Mr. Adviento testified that he had suspected

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Mrs. Adviento of “fooling around” for about a year and that Mrs.

Adviento had requested a divorce two or three times. Mr.

Adviento also stated that he would not be ashamed to be divorced

and it would “be okay” if Mrs. Adviento left him. Although Mr.

Adviento stated that he felt frustration and anger while arguing

with Mrs. Adviento regarding her phone call with Merced, this

testimony regarding his emotional reaction falls far short of

constituting evidence of a physical loss of self-control.

The majority also cites to Mr. Adviento’s testimony

regarding his mental state immediately before and during the

fatal stabbing of Mrs. Adviento. Majority at 66. Mr. Adviento

testified that he was “surprised” that Mrs. Adviento stabbed him

in the stomach. Majority at 66. He stated that, while he

struggled with Mrs. Adviento, he was “afraid of [his] life” and

he “thought [he] was going to die.” Majority at 66. Mr.

Adviento also testified that he did not know how many times, or

where he stabbed Mrs. Adviento. Majority at 66.

Mr. Adviento’s testimony regarding his deadly struggle

with Mrs. Adviento is similar to the testimony in Sawyer from

which we concluded that there was no evidence to warrant an EMED

manslaughter instruction. In Sawyer, we reasoned that there are

“situation[s] where a defendant exerts deadly force in self-

defense, without a loss of self-control due to the influence of

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extreme mental or emotional disturbance.” 88 Hawai'i at 333, 966

P.2d at 645.

The altercation in Sawyer occurred between two women

living in Kapiolani Park. Id. at 327, 966 P.2d at 639. The

complaining witness (CW) testified that she had accused defendant

Sawyer of stealing CW’s mother’s food stamps and that Sawyer had

then hit CW with a vodka bottle. Id. An altercation ensued

during which the women punched each other and CW was cut by the,

then broken, vodka bottle. Id. Sawyer testified that it was CW

who threw the first punch. Id. at 328, 966 P.2d at 640. She

stated that the vodka bottle broke during the ensuing fight, and

that she used the broken bottle to push CW away, inadvertently

cutting CW in the process. Id. When the police arrived on the

scene, CW was bleeding heavily from wounds to her face, neck, and

head. Id. at 327, 966 P.2d at 639.

As in Sawyer, Mr. Adviento testified that he was

involved in a potentially deadly fight. Both Sawyer and Mr.

Adviento testified that they were not fully aware of the results

of their actions during the fight. Compare Majority at 73-74

(stating that Mr. Adviento did not know where and how many times

he stabbed Mrs. Adviento), and Sawyer, 88 Hawai'i at 328, 966

P.2d at 640 (stating that Sawyer did not realize that she was

cutting CW). Although Mr. Adviento testified that he was

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surprised and afraid, none of his testimony indicated that he

lost self-control. Without evidence of a loss of self-control,

an EMED instruction is not warranted.

Finally, the majority references Mr. Adviento’s

testimony regarding his state of mind following the stabbing.

Mr. Adviento stated that after Mrs. Adviento stopped moving he

felt “shocked.” Majority at 67. This testimony is irrelevant.

Only evidence of Mr. Adviento’s state of mind at the time of the

altercation is pertinent to the EMED defense. In State v. Moore,

82 Hawai'i 202, 921 P.2d 122 (1996), we concluded that evidence

that the defendant was “agitated,” “nervous,” “frantic,”

“anxious,” and “distraught” at the time of his arrest,

immediately following the shooting of his wife, was not probative

of his state of mind at the time of the shooting. 82 Hawai'i at

210, 921 P.2d at 130. We concluded that “even if this evidence

supported a conclusion that [the defendant] was under the

influence of an EMED when he was arrested, the relevant inquiry

is whether he was under such influence at the time he shot [his

wife] and whether there was a reasonable explanation, viewed from

[the defendant’s] standpoint, for the disturbance.” Id.

Likewise, Mr. Adviento’s “shock” upon realizing that his wife was

dead, is not evidence of his state of mind at the time of the

altercation.

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The strain in the Advientos’ relationship, Mr.

Adviento’s purported “surprise” at Mrs. Adviento’s attack, and

Mr. Adviento’s emotional reactions subsequent to Mrs. Adviento’s

death are not evidence of a loss of self-control. Therefore,

there is no evidence to support an EMED instruction.

III. An unrequested jury instruction regarding a defense isnot subject to the “any” evidence standard

The majority’s “any evidence” standard directly

contradicts the test for unrequested jury instructions this court

recently developed in State v. Taylor, 130 Hawai'i 196, 307 P.3d

1142 (2013). The Taylor test provides that the appellate court

must first review unrequested defense instructions for plain

error affecting substantial rights. Id. at 197-98, 307 P.3d at

1143-44. “[P]lain error exists if the defendant, at trial, had

met his or her initial burden to adduce credible evidence of

facts constituting the defense (unless those facts are supplied

by the prosecution’s witness).” Id. at 198, 307 P.3d at 1144.

Credible evidence is “evidence with reasonable grounds for being

believed.” Id. at 205 n.10, 307 P.3d at 1151 n.10. Even if the

trial court plainly erred in omitting a jury instruction, this is

grounds for reversal only “if an examination of the record as a

whole reveals that the error was not harmless beyond a reasonable

doubt.” Id. at 208, 307 P.3d at 1154.

In our opinion in Taylor, we first clarified our

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earlier holding in State v. Stenger, 122 Hawai'i 271, 226 P.3d

441 (2010), another case involving a mistake of fact jury

instruction. Id. at 203, 307 P.3d at 1149. We stated that in

Stenger, the trial court had a duty to provide the defense

instruction because the defendant had requested it and had

provided some evidence in support of the defense. Id. We

reached this conclusion by applying our standard for requested

jury instructions from Locquiao, 100 Hawai'i 195, 58 P.3d 1242

(2002). Id. at 202-03, 307 P.3d at 1148-49. In Locquiao, we

held that “‘where a defendant has adduced evidence at trial

supporting an instruction on the statutory defense of ignorance

or mistake of fact, the trial court must, at the defendant’s

request, separately instruct as to the defense . . . no matter

how weak, inconclusive, or unsatisfactory the evidence [as to the

defendant’s mistake of fact] may be.’” Id. at 202, 307 P.3d at

1148 (alterations in original) (quoting Stenger, 122 Hawai'i at

281, 226 P.3d at 451).

Pursuant to Locquiao, Stenger, and Taylor, the trial

court is obligated to give a requested jury instruction on a

defense when “some evidence” in support of the defense is

proffered. However, a trial court is only required to give an

unrequested jury instruction on a defense when “credible

evidence” is proffered. Id. at 203-04, 307 P.3d at 1149-50. In

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Taylor, we concluded that the omission of a mistake of fact jury

instruction did not constitute plain error because neither the

defendant nor the State produced sufficient evidence to support

the defense. Id. at 208, 307 P.3d at 1154.

Because Mr. Adviento did not request an EMED

instruction, and, in fact, actively waived such an instruction,

the Taylor test should apply. Under this test, the trial court

would only err in failing to give the EMED instruction if

credible evidence was proffered at trial. As discussed above,

there was no evidence to support the EMED instruction and thus

the trial court did not err in failing to give the instruction

under either the “any evidence” or the “credible evidence”

standards.

The majority contends that the holding in Taylor is not

applicable here because Taylor concerned a non-affirmative

complete defense whereas this case concerns an affirmative

mitigating defense. Majority at 56-58. However, the majority

fails to adequately justify why the rules for these different

types of defenses should differ. The majority notes Taylor’s

reasoning that it may be difficult for a trial court to identify

the existence of “weak, inconclusive, or unsatisfactory evidence”

that would support the non-affirmative complete defense of

mistake of fact. Majority at 57 (quoting Taylor, 130 Hawai'i at

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207 n.12, 307 P.3d at 1153 n.12). Under the majority’s

reasoning, the possible existence of an EMED defense is far more

readily apparent. Yet, it is not clear that affirmative

mitigating defenses are always more easily identified than non-

affirmative complete defenses, and the majority does not make

this contention. Even if the trial court is alert to the

possibility of an affirmative mitigating defense such as EMED, it

may be difficult for the court to differentiate between the

existence of no evidence to support the defense, and the

existence of only weak, inconclusive, and unsatisfactory evidence

to support the defense. Furthermore, there is no rational

justification for requiring a circuit court to give an

instruction regarding an affirmative defense supported by only

weak, inconclusive, and unsatisfactory evidence because the

defendant is required to prove this defense by a preponderance of

the evidence.

IV. Jury instructions on affirmative defenses are waivableby the defendant

A. Our caselaw does not bar the waiver of affirmative defense instructions

The majority contends that because it is the trial

court’s duty to instruct the jury on the law and to determine

whether the record contains the necessary evidence to support a

defense instruction, a defendant should not be allowed to waive

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an instruction for which there is evidentiary support. Majority

at 36. The majority also reasons that to allow a defendant to

waive an EMED defense impairs the jury’s truth finding abilities

and promotes an “all or nothing” approach. Majority at 38-39.

According to the majority, when the jury is prevented from

receiving an instruction on a warranted defense, the jury is

unable to “accurately determine the defendant’s criminal

liability based on the evidence that was presented to it.”

Majority at 42. In support of this conclusion, the majority

relies upon this court’s opinion in State v. Haanio, 94 Hawai'i

405, 16 P.3d 246 (2001), overruled in part on other grounds,

State v. Flores, 131 Hawai'i 43, 314 P.3d 120 (2013). Majority

at 38-43.

In Haanio, we held that a trial court must instruct a

jury of any lesser included offense for which there is a rational

basis in the evidence, regardless of whether the defendant

objects to such instructions. Id. at 407, 16 P.3d at 248. We

reasoned that a defendant should not be permitted to waive an

included offense instruction for “strategic reasons.” Id. at

414, 16 P.3d at 255. We strongly disapproved of “‘a strategy

that permits parties in a criminal trial to forego instructions

on provable lesser-included offenses, thereby forcing the jury to

choose between conviction and acquittal on the greater charge.’”

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Id. (quoting C. Carpenter, The All-or-Nothing Doctrine in

Criminal Cases: Independent Trial Strategy or Gamesmanship Gone

Awry?, 26 Am. J. Crim. L. 257, 258 (1999)). We also reasoned

that neither a defendant nor the prosecution have constitutional

or substantial rights not to have the jury instructed on lesser

included offenses. Id. at 414-15, 16 P.3d 256-57.

Our opinion in Haanio cited to the California Supreme

Court’s decision in People v. Barton, 906 P.2d 531 (Cal. 1995),

concluding that a defendant could not waive a jury instruction on

lesser included offenses supported by the evidence. Haanio, 94

Hawai'i at 415, 16 P.3d at 256; Barton, 906 P.2d at 536-37.

However, in Barton, the California court stressed the distinction

“between a trial court’s relatively broad duty to instruct on

lesser included offenses and its less expansive duty to instruct

on defenses.” 906 P.2d at 536-37. The California court reasoned

that limiting a trial court’s duty to issue defense instructions

in no way limits the jury’s ability to fully consider all

criminal offenses supported by the evidence:

When . . . the question is whether the trial court must, onits own initiative, instruct the jury on defenses not asserted by the defendant, different considerations arise.Failure to so instruct will not deprive the jury of theopportunity to consider the full range of criminal offensesestablished by the evidence. Nor is the prosecution deniedthe opportunity to seek conviction on all offenses includedwithin the crime charged. Moreover, to require trial courtsto ferret out all defenses that might possibly be shown bythe evidence, even when inconsistent with the defendant’stheory at trial, would not only place an undue burden on thetrial courts but would also create a potential of prejudice

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to the defendant. “Appellate insistence upon sua sponte instructions which are inconsistent with defense trial theory or not clearly demanded by the evidence would hamperdefense attorneys and put trial judges under pressure toglean legal theories and winnow the evidence for remotelytenable and sophistical instructions.”

Id. at 536 (quoting People v. Sedeno, 518 P.2d 913, 921-22 (Cal.

1974), overruled on other grounds by People v. Breverman, 960

P.2d 1094 (Cal. 1998)). The California court concluded that the

trial court only has a duty to give a sua sponte jury instruction

“if it appears that the defendant is relying on such a defense,

or if there is substantial evidence supportive of such a defense

and the defense is not inconsistent with the defendant’s theory

of the case.” Id. at 534.

While the California courts recognize that, “even in

the absence of a request, the trial court must instruct on the

general principles of law relevant to the issues raised by the

evidence,” they have repeatedly concluded that this duty does not

extend to instructing a jury on defenses that are inconsistent

with a defendant’s theory of the case. Sedeno, 518 P.2d at 921;

see also Breverman, 960 P.2d at 1102 (emphasizing the “sharp

distinction” between instructions on defenses and those on lesser

included offenses); Barton, 906 P.2d at 536-37 (reasoning that

there are strong policy considerations to support the distinction

between defense instructions and lesser included offense

instructions); People v. Elize, 84 Cal. Rptr. 2d 35, 39-40 (Cal.

15


Ct. App. 1999) (stating that courts have a duty to instruct on

lesser included offenses sua sponte, but that courts only have a

duty to instruct on defenses as requested by the defendant). The

California courts acknowledge that a defendant may not waive an

instruction on a lesser included offense because “a defendant has

no right to an acquittal when that evidence is sufficient to

establish a lesser included offense.” Sedeno, 518 P.2d at 921.

However, the California courts also observe that to mandate a

court to sua sponte instruct on every defense supported by

substantial evidence places an undue burden upon trial judges and

is possibly prejudicial to defendants. Id. Therefore, when

“there is substantial evidence of a defense inconsistent with the

defense advanced by defendant, the court should ascertain whether

the defendant wants instructions on the alternate theory” and

should give the instruction when it is expressly requested by the

defendant. Elize, 84 Cal. Rptr. 2d at 42.

B. Defendants have a constitutional right to control theirdefenses

In crafting rules regarding the sua sponte issuance of

jury instructions, we must not only be cognizant of the trial

court’s duty to instruct the jury properly on the law, but also

of a defendant’s right to present the defenses of his or her

choosing. Compare Haanio, 94 Hawai'i at 414-15, 16 P.3d at 255

56 (stating that it is the duty of the trial courts to ensure

16


that juries are properly instructed) and State v. Kupau, 10 Haw.

App. 503, 516, 879 P.2d 559, 565 (1994) (discussing a defendant’s

right to dictate a defense strategy). The defendant’s right to

control his or her defense emanates from the sixth amendment to

1the United States Constitution and article I, section 14 of the

Hawai'i Constitution2. The United States Supreme Court has

explained that the sixth amendment provides both the right to the

effective assistance of counsel and also the right to control

one’s defense. See Strickland v. Washington, 466 U.S. 668, 686

(1984) (“The Sixth Amendment recognizes the right to the

assistance of counsel . . . . Government violates the right to

effective assistance when it interferes in certain ways with the

ability of counsel to make independent decisions about how to

conduct the defense.”). Previous United States Supreme Court

cases have held that the right to present a defense free from

government interference was violated by a Tennessee rule that

required the defendant to be the first defense witness, Brooks v.

Tennessee, 406 U.S. 605, 612-613 (1972), and by a Georgia statute

barring direct examination of the defendant, Ferguson v. Georgia,

1 The sixth amendment to the United States Constitution provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy theright to a speedy and public trial . . . and to have the Assistance of Counselfor his defence.” U.S. Const. amend. VI.

2 Article I, section 14 of the Hawai'i Constitution provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy theright to a speedy and public trial by an impartial jury . . . and to have theassistance of counsel for the accused’s defense.” Haw. Const. art. I, § 14.

17


365 U.S. 570, 593-96 (1961). The Court in Brooks explained,

“Whether the defendant is to testify is an important tactical

decision . . . [and] the statute restricts the defense –

particularly counsel -- in the planning of its case.” 406 U.S.

at 612-13.

Hawai'i courts have also recognized that “[t]he sixth

amendment and article I, section 14 of the Hawai'i Constitution

guarantee an accused the right to the assistance of counsel in

his or her defense, . . . as well as the right to present a

defense.” State v. Vliet, 91 Hawai'i 288, 294 n.3, 983 P.2d 189,

195 n.3 (1999) (internal citations omitted). We have explained

that this right to offer a defense extends to the right to

control that defense:

Undeniably, the defendant has a constitutional right underthe sixth amendment to offer a defense, and, as an adjunctto this right, to devise a proper and appropriate trialstrategy to blunt or otherwise neutralize the thrust of theprosecution’s case-in-chief. But this right and option,while relevant to the jury’s duty to properly perform itsconstitutional functions in arriving at a just decision, isseparate and distinct from the independent duty of the courtto reasonably assist and instruct the jury in theintelligent discharge of these functions so as to avoid amiscarriage of justice.

Kupau, 10 Haw. App. at 516-17, 879 P.2d at 565 (emphasis added)

(quoting Edward G. Mascolo, Procedural Due Process and the

Lesser-Included Offense Doctrine, 50 Alb. L. Rev. 263, 299-300

(1986)). Furthermore, “under the Hawaii’s [sic] Constitution,

defendants are clearly afforded greater protection of their right

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to effective assistance of counsel,” which extends to their right

to dictate trial strategy. State v. Aplaca, 74 Haw. 54, 67 n.2,

837 P.2d 1298, 1305 n.2 (1992).

A defendant’s choice of defenses is a crucial element

of trial strategy. Just as the government may not dictate the

order of defense witnesses or interfere with the direct

examination of the defendant, the government must also refrain

from forcing a defense instruction upon a defendant. For the

court to issue a defense instruction actively opposed by the

defendant is a governmental intrusion into the defendant’s trial

strategy. This intrusion deprives a defendant of his or her

control over the defense and deprives the defendant of the value

of his or her attorney’s strategic advice regarding the choice of

defenses.

Generally, a defendant or “[d]efense counsel’s tactical

decision at trial will not be questioned by a reviewing court.”

State v. Samuel, 74 Haw. 141, 156, 838 P.2d 1374, 1382 (1992).

As I emphasized in my dissent in Stenger, “it is not the trial

court’s responsibility to implement defense strategy with a

defense instruction when the defense counsel fails to do so.”

Stenger, 122 Hawai'i at 305, 226 P.3d at 475 (Nakayama, J.,

dissenting) (emphasis in original). Furthermore, the trial court

should not actively undermine a defense strategy by issuing a

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defense instruction contrary to a defendant’s theory of the case.

When a trial court issues a defense instruction over a

defendant’s waiver of that instruction, the trial court is

reaching beyond its established role as the instructor of law and

interfering with a defendant’s sixth amendment and article I,

section 14 right to control his or her defense.

While we have concluded that the trial court’s duty to

instruct on lesser included offenses outweighs any interest the

defendant might have in waiving such an instruction, the

balancing of these interests is fundamentally different for jury

instructions regarding defenses. See State v. Auld, 114 Hawai'i

135, 149, 157 P.3d 574, 588 (App. 2007) (Nakamura, J., concurring

and dissenting) (“[T]he question of whether the defendant should

have a say in how to defend against the charges presented to the

jury by forgoing a self-defense instruction is different from the

question . . . of whether the defendant can prevent the jury from

considering his or her guilt on lesser included offenses.”)

Trial courts are mandated by statute to instruct the jury as to

any lesser included offense for which “there is a rational basis

in the evidence.” HRS § 701-109(5) (1993) (“The court is not

obligated to charge the jury with respect to an included offense

unless there is a rational basis in the evidence for a verdict

acquitting the defendant of the offense charged and convicting

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the defendant of the included offense.” (emphasis added)); see

also Haanio, 94 Hawai'i at 414, 16 P.3d at 255 (“We now conclude

that the better rule is that trial courts must instruct juries on

all lesser included offenses as specified by HRS § 701-109(5),

despite any objection by the defense, and even in the absence of

a request from the prosecution.”).

There is no analogous statutory mandate for defense

instructions. The jury may only receive an instruction on a

defense if “evidence of the specified fact or facts has been

presented.” HRS § 701-115(2). In the case of affirmative

defenses such as EMED, the defendant may only be acquitted if the

jury concludes that the defense was proven by a preponderance of

the evidence. It would seem particularly strange for a court to

foist an affirmative defense upon a defendant, forcing a

defendant to bear the burden of proving that defense by a

preponderance of the evidence, where the defendant altogether

opposes instructing the jury on such a defense.

C. The Taylor test should be modified to permit waiver

To provide clear rules for trial courts while

protecting the rights of defendants, we should incorporate

aspects of California’s test for the issuance of sua sponte jury

instructions into the Taylor “credible evidence” standard. The

California Supreme Court has elaborated upon a similar standard:

21


“[T]he duty to give instructions, Sua sponte [sic], on particular

defenses and their relevance to the charged offense arises only

if it appears that the defendant is relying on such a defense, or

if there is substantial evidence supportive of such a defense and

the defense is not inconsistent with the defendant’s theory of

the case.” Sedeno, 518 P.2d at 921. “[W]hen the trial court

believes ‘there is substantial evidence that would support a

defense inconsistent with that advanced by a defendant, the court

should ascertain from the defendant whether he wishes

instructions on the alternative theory.’” Breverman, 960 P.2d at

1102 (emphasis omitted) (quoting Sedeno, 518 P.2d at 922 n.7).

I recommend that we clarify the Taylor test to allow a

defendant to enter a knowing, intelligent, and voluntary waiver

of a defense jury instruction. Under this test, a trial court

only has a duty to give unrequested instructions on defenses if

the defense is supported by credible evidence and the defendant

does not waive such an instruction. When the prosecution or the

trial court identifies a defense supported by credible evidence,

the trial court should seek the defendant’s approval before

instructing the jury on such a defense. This process will

prevent a defendant from being unduly prejudiced by defense

instructions inconsistent with the defendant’s theory of the

case.

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D. The majority’s fears are unfounded

The majority fears that permitting waiver of defense

instructions will undoubtedly lead to the defendant challenging

the waiver on appeal. Majority at 45 n.21. The majority’s

concern appears unfounded. Where a defendant has entered an on

the record waiver of a defense instruction, the defendant may not

allege on appeal that the court plainly erred in not issuing the

defense instruction.3 Indeed, it appears that it is the

majority’s test that will lead to a greater number of appellate

challenges. Under the majority’s test, defendants may prevail on

appeal by arguing that the circuit court plainly erred in failing

to give a defense instruction that the defendant did not request

at trial and that was supported by only a scintilla of evidence.4

The concerns we raised in Haanio regarding the waiver

of lesser included offense instructions are also not implicated

by the waiver of defense instructions. Allowing a defendant to

waive a lesser included offense instruction “forecloses the

3 Defendants may of course raise ineffective assistance of counsel claims if they allege that the waiver was based on constitutionally defectiveadvice from their attorneys. Additionally, defendants may challenge whetherthe waiver of the defense instruction was knowing, voluntary, or intelligent.However, these possible points of error would not raise any obstacles onappeal not present in other challenges to the effectiveness of counsel or thevalidity of a waiver.

4 This result is particularly illogical because a jury may only convict a defendant of EMED manslaughter if it concludes that thepreponderance of the evidence proves that the defendant was acting under theinfluence of reasonably induced extreme mental or emotional disturbance at thetime of the offense. See HRS § 701-115(2)(b) (1993)

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determination of criminal liability where it may in fact exist.”

Haanio, 94 Hawai'i at 414, 16.P.3d at 255. However, allowing

defendants to choose which defenses to raise, and which to waive,

does not constrain the trial court from instructing the jury on

the full range of offenses for which defendants may be liable.

It simply allows defendants, assisted by their counsel, to

exercise their sixth amendment right to control their defenses.

The majority also references the concern we expressed

in Haanio, regarding the trial court’s role in determining

whether to give an included offense instruction where the State

and the defendant express divergent interests. 94 Hawai'i at

413-14, 16 P.3d at 254-55. We stated, “[P]ermitting the parties,

for their strategic reasons, to cast upon the trial court the

burden, at the risk of error, of deciding not to give an included

instruction when the evidence supports it, may have unduly

complicated the trial court’s ultimate obligation to promote

justice in criminal cases.” Id. at 414, 16 P.3d at 255. The

majority reasons that this same concern would be implicated were

waiver of defense instructions permitted. Majority at 44-45.

However, in the case of defense instructions, the trial court

will not “be required to ‘steer[] through the competing

interests’ of the parties and determine, at the risk of error,

whether or not to give the instruction.” Majority at 44

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(alteration in original) (quoting Haanio, 94 Hawai'i at 414, 16

P.3d at 255). The State may alert the court to a defense it

believes to be supported by the evidence or it may argue that

there is no evidence to support a particular defense instruction.

However, the State has no legitimate interest in requesting that

the circuit court not give a defense instruction when that

instruction is requested by the defendant and supported by

credible evidence. The presentation of a particular defense is a

tactical decision constitutionally reserved for the defendant.

If the defendant wishes to waive an instruction, this decision

must be honored by the trial court.5

The majority also posits that permitting a defendant to

waive the consideration of a defense supported by some evidence

would place the trial court in an untenable situation in the case

of bench trials. Majority at 48-49. The majority contends that

where a defendant in a bench trial has waived a defense, “the

trial judge would be forced to reach an ‘untrue’ verdict not

based on the facts but instead dictated by the defendant’s trial

strategy.” Majority at 48. However, this fear ignores the fact

5 The majority contends that the State’s interest in obtaining a “true verdict” supports giving “the jury the opportunity to convict the defendant of manslaughter.” Majority at 44. However, if the State believedthe evidence supported a conviction of manslaughter it was not precluded fromarguing as much to the jury. The jury received an instruction regarding thelesser included offense of reckless manslaughter and could have convicted Mr.Adviento of this offense.

25


that judges are often privy to factual and legal information that

they are barred from considering when adjudicating a bench trial.

In a bench trial, judges routinely receive incompetent evidence

or evidence that is admissible for a only a limited purpose.

“[W]hen evidence is admissible for a limited purpose, we presume

that the judge only considered the evidence for the permissible

purpose.” State v. Lioen, 106 Hawai'i 123, 133, 102 P.3d 367,

377 (App. 2004); see also State v. Vliet, 91 Hawai'i 288, 298,

983 P.2d 189, 199 (1999) (“‘[A] judge is presumed not to be

influenced by incompetent evidence.’” (quoting State v. Antone,

62 Haw. 346, 353, 615 P.2d 101, 107 (1980)). A judge may also

have knowledge of statutory violations, other than those with

which the defendant was charged, which are proved by the evidence

presented during the bench trial. However, the judge is of

course barred by due process considerations from convicting the

defendant of these uncharged offenses. Judges’ verdicts in these

situations are no less “true” simply because the judges are

barred from considering facts and law outside the scope of the

matter before the court.

Judges must maintain neutrality and “‘should not assume

the role of advocate for either party.’” State v. Medeiros, 80

Hawai'i 251, 261, 909 P.2d 579, 589 (App. 1995) (quoting State v.

Silva, 78 Hawai'i 115, 118, 890 P.2d 702, 705 (App. 1995)). In

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bench trials, this admonishment is of particular importance

because, “‘the court acts both as the judge of the law and as the

judge of the facts.’” Id. (quoting Silva, 78 Hawai'i at 118, 890

P.2d at 705). “‘When the trial judge fails to act impartially

and takes on the role of the prosecutor, the resulting conviction

will be reversed.’” Id. (quoting Silva, 78 Hawai'i at 118, 890

P.2d at 705). It is equally important that the judge not take on

the role of defense attorney. But, pursuant to the majority’s

opinion, a judge must now assert a defense on behalf of a

defendant when the defendant has specifically waived that

defense.6

V. Mr. Adviento validly waived the EMED instruction

As discussed in Part I, there was no evidence to

support an EMED instruction. However, even if sufficient

evidence was presented to support an EMED instruction, Mr.

Adviento entered a knowing, intelligent, and voluntary waiver of

the instruction. In determining “‘whether a waiver was

voluntarily and intelligently undertaken, this court will look to

the totality of facts and circumstances of each particular

case.’” State v. Friedman, 93 Hawai'i 63, 68-69, 996 P.2d 268,

273-74 (2000). The majority suggests that even if defendants are

6 Of course, there is nothing to prevent a judge from convicting a defendant of a lesser included offense such as manslaughter if it is supportedby the evidence.

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permitted to waive defense instructions, Mr. Adviento’s purported

waiver of the EMED instruction was not knowing, intelligent, and

voluntary. Majority at 46-47. The majority contends that Mr.

Adviento was motivated to waive the EMED instruction by his

belief that such a waiver would prevent the State from admitting

his prior assault conviction into evidence. Majority at 46-47.

However, a review of the circuit court’s multiple colloquies with

Mr. Adviento demonstrates that the admission of Mr. Adviento’s

prior conviction into evidence was not directly tied to Mr.

Adviento’s assertion of the EMED defense, and Mr. Adviento’s

waiver of the defense instruction was knowing, intelligent, and

voluntary.

A. Mr. Adviento entered a knowing, intelligent, andvoluntary waiver of the EMED instruction

In a pretrial hearing, Mr. Adviento and the State first

discussed the admissibility of his prior assault conviction

resulting from an altercation with Mrs. Adviento. The trial

court stated that it would not rule upon the admissibility of the

conviction at that time because it was potentially prejudicial

and its probative value was as of yet undefined. The trial court

reasoned that if Mr. Adviento raised an EMED defense based upon

the nature of his relationship with Mrs. Adviento, the evidence

of the prior conviction could be used in rebuttal to demonstrate

that their marital problems were longstanding. However, the

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trial court did not foreclose the possibility of admitting the

prior conviction into evidence if Mr. Adviento was to forego the

EMED defense.

Prior to trial, Mr. Adviento’s attorney stated on the

record that Mr. Adviento had decided not to assert the EMED

defense. The State responded that if Mr. Adviento raised the

EMED defense, the State would move to admit evidence of Mr.

Adviento’s prior assault conviction. The trial court responded:

“If EMED is not raised, it’s unlikely that the Court’s going to

allow that.” The court then stated that it would not decide the

issue at that time and that it would conduct a full voir dire

after opening statements.

At the conclusion of Mr. Adviento’s case, the trial

court questioned Mr. Adviento regarding the EMED defense. The

trial court established that Mr. Adviento understood that EMED is

an affirmative defense that reduces the crime of murder to

manslaughter and that if the jury was not instructed on EMED, the

jury would not have the option of convicting Mr. Adviento of

manslaughter. Mr. Adviento stated that he had discussed the

defense of EMED with his attorney and that he had decided to give

up his right to assert the defense. At the urging of the State,

the trial court asked Mr. Adviento if he would like to discuss

his waiver with his attorney again and stressed that Mr. Adviento

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was free to change his mind. Mr. Adviento responded that he

would like to speak to his attorney and the court took a brief

recess.

When Mr. Adviento returned, his attorney stated that he

had discussed the EMED defense “quite extensively” with Mr.

Adviento previously and that Mr. Adviento had simply had “a few

clarification questions.” In response to questions from the

trial court, Mr. Adviento said that he had received sufficient

time to discuss the waiver with his attorney and that he did not

have any further questions. Mr. Adviento then stated that he

would “go for the self-defense” and that he would not raise the

defense of EMED. The trial court then found that “the Defendant

having been fully informed has knowingly, intelligently, and

voluntarily waived any jury instruction on extreme mental or

emotional disturbance.”

Mr. Adviento’s waiver of the EMED defense appears to

have been a decision that he entered into after extensive

discussions with his attorney. In waiving the EMED defense

instruction, Mr. Adviento specifically stated his desire to rely

instead upon the complete defense of self-defense. The trial

court explicitly informed Mr. Adviento of the consequences of his

waiver and Mr. Adviento stated that he did not have any questions

regarding the instruction. The record demonstrates that his

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waiver was knowing, intelligent, and voluntary.

B. Evidence of Mr. Adviento’s prior conviction would havebeen admissible had the court instructed the jury onthe EMED defense

Mr. Adviento’s waiver of the EMED instruction is in no

way invalidated by the connection between the EMED defense and

the admission of evidence of Mr. Adviento’s prior assault

conviction. Had the court issued an EMED instruction, the

evidence of Mr. Adviento’s prior conviction would have been

admissible pursuant to Hawai'i Rules of Evidence (HRE) Rule

404(b) (2008). Thus, although the trial court had yet to rule on

this issue, Mr. Adviento’s waiver of the EMED instruction may

have been partially motivated by his desire to prevent his prior

conviction from coming into evidence. The majority would disrupt

Mr. Adviento’s strategic decision and force him to receive the

unwanted jury instruction and the resultant entry of his prior

conviction into evidence.

Evidence of prior bad acts “‘is admissible when it is

1) relevant and 2) more probative than prejudicial.’” State v.

Cordeiro, 99 Hawai'i 390, 404, 56 P.3d 692, 706 (2002) (some

internal quotation marks omitted) (quoting State v. Torres, 85

Hawai'i 417, 421, 945 P.2d 849, 853 (App. 1997)). HRE Rule

404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissibleto prove the character of a person in order to show actionin conformity therewith. It may, however, be admissible

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where such evidence is probative of another fact that is ofconsequence to the determination of the action, such asproof of motive, opportunity, intent, preparation, plan,knowledge, identity, modus operandi, or absence of mistakeor accident.

“‘The list of permissible purposes in Rule 404(b) is not intended

to be exhaustive for the range of relevancy outside the ban is

almost indefinite.’” State v. Behrendt, 124 Hawai'i 90, 103, 237

P.3d 1156, 1169 (2010) (some internal quotation marks omitted)

(quoting State v. Clark, 83 Hawai'i 289, 300-01, 926 P.2d 194,

205-06 (1996)). Here, evidence of Mr. Adviento’s prior

conviction for assaulting Mrs. Adviento would have been

admissible to rebut an EMED defense based on the Advientos’

relationship.

In State v. Maelega, 80 Hawai'i 172, 907 P.2d 758

(1995), we held that the trial court did not err in introducing

prior bad act evidence to rebut an EMED defense. 80 Hawai'i at

184, 907 P.2d at 770. The defendant Maelega was charged with

murdering his wife by choking her with his hands, strangling her

with an electric cord, slashing her throat, and stabbing her in

the back and breasts. Id. at 175, 907 P.2d at 761. At trial,

Maelega argued that he was acting under an extreme emotional

disturbance caused by the state of their marriage. Id. The

trial court concluded that evidence of Maelega’s prior acts of

abuse was admissible to “rebut[] both prongs of the extreme

mental or emotional disturbance defense in that it may tend to

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show that [Maelega] acted with self-control at the time that he

allegedly killed his wife, and secondly, it may tend to show that

even if [Maelega] did not act with self-control, then there was

no ‘reasonable explanation’ for his extreme mental or emotional

disturbance.” Id. at 184, 907 P.2d at 770 (first alteration

added). We reasoned that the evidence was admissible despite the

fact there was “little similarity between [Maelega’s] prior acts

and the instant offense as alleged in that the prior acts do not

involve weapons, and do not involve strangulation or stabbing.”

Id. at 183, 907 P.2d at 769 (alteration in original).

In State v. Haili, 103 Hawai'i 89, 79 P.3d 1263 (2003),

we again held that prior bad acts could properly be admitted into

evidence to rebut an EMED defense. Id. at 106, 79 P.3d at 1280.

We commented that where a defendant alleged that he was under the

influence of EMED when he killed his wife, evidence of his prior

threats to kill his wife “may have been sufficient for the jury

to conclude that [the Defendant] was not under the influence of

EMED.” Id.

The majority states that an EMED instruction was

required because there was evidence that “[Mr.] Adviento may have

been under significant strain and stress at the time he caused

[Mrs. Adviento]’s death, particularly due to the problems he and

[Mrs. Adviento] were experiencing.” Majority at 65. As in

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Maelega and Haili, the evidence of Mr. Adviento’s prior violent

acts would be highly probative in rebutting such an EMED defense.

The evidence of Mr. Adviento’s previous conviction for assault

resulting from an altercation with Mrs. Adviento may tend to show

that he acted with self-control when he killed Mrs. Adviento and

that there was not a “reasonable explanation” for his very

violent reaction to the preexisting strain in their relationship.

Although the prior conviction is also prejudicial, the evidence

appears to be more probative than prejudicial and the circuit

court could have admitted it to rebut an EMED defense.

VI. Conclusion

While it is the duty of trial courts to instruct juries

upon the law, this duty must not be extended so far as to mandate

that trial courts control a defendant’s choice of defenses. The

majority would require trial courts to issue defense instructions

even where, as here, the defendant has entered a knowing,

intelligent, and voluntary waiver of the instruction for

strategic reasons. Furthermore, the majority’s adoption of the

“any evidence” standard for unrequested defense instructions is

unsupported by our recent precedent and overly burdensome upon

the trial courts. The majority’s opinion requires the trial

courts to intrude upon defendants’ exclusive purview in

presenting their defenses, to be constantly alert to the

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possibility that “any evidence” has been raised to support an

unrequested defense instruction, and to give this instruction,

even over the objections of defendants. The majority’s rule

places an impracticable burden upon the trial courts and is

potentially highly prejudicial to defendants.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

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